Citation Nr: 1034777
Decision Date: 09/15/10 Archive Date: 09/21/10
DOCKET NO. 05-15 050 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a back disability, to
include as secondary to a left knee disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Jebby Rasputnis, Associate Counsel
INTRODUCTION
This matter was last before the Board of Veterans' Appeals
(Board) in May 2008, on appeal of a June 2003 rating decision of
the Waco, Texas regional office (RO) of the Department of
Veterans Affairs (VA). The rating decision, in pertinent part,
denied the Veteran's claim for service connection. The Board
remanded the claim for additional development.
In February 2008, the Veteran, accompanied by his representative,
appeared at a hearing held before the below-signed Veterans Law
Judge in Waco, Texas. A transcript of that hearing has been
associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
The law mandates that VA provide a medical examination when
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159 (2009). The claims file reflects
that the Veteran was afforded VA examination for his back in
October 2004. The 2004 VA examiner diagnosed chronic low back
strain with spasm, noted that the Veteran was treated once during
service for a back strain, and stated that he could not assess
whether the current back disorder was related to service without
resort to speculation.
As noted above, this matter was remanded by the Board in May
2008. In that remand, the Board observed that the claims file
contained evidence suggesting that the claimed back disability
may be related to the Veteran's service-connected left knee
disability. The Board directed that the Veteran be provided with
notice of the information and evidence necessary to support a
claim of entitlement to service connection on a secondary basis
and that he be afforded an examination of his spine. The
examiner was requested to provide an opinion, supported by a
medical basis, as to whether or not any back disability was
caused by an in-service back strain or was caused or aggravated
by the service-connected left knee disability.
Pursuant to the 2008 remand instructions, the Veteran was
afforded another VA examination in July 2009. The 2009 examiner
also diagnosed chronic low back strain. Based on the lack of
indication in the service treatment, or post-service treatment,
records that the in-service strain had left chronic residuals,
the examiner opined that it was not likely that the current back
disorder was related to the Veteran's service. In regard to a
possible relationship between the Veteran's service-connected
left knee and the currently diagnosed chronic back strain, the
examiner observed that, besides the 1973 service treatment record
for back strain, there was "no other indication in [the claims]
file of a chronic back condition." On the basis that the
Veteran reported that his back problems were not related to his
left knee disability, the examiner opined that the diagnoses were
not secondarily related.
The Board notes that, in contrast to the examiner's discussion of
the claims file, the record reflects the following:
? The Veteran's August 2002 claim requests consideration of a
"back condition secondary to my service connected left